However the Court rules, the debate won’t be over. Perhaps it will never be over (see, for example, abortion). Whether SCOTUS says California voters may take away the right to marry, or that the Defense of Marriage Act is unconstitutional, or anything in between, the fight won’t stop.
Yet in many ways we’re all debating the wrong thing. After all, civil marriage is a legal construct: it’s designed to ensure the orderly transfer of property – primarily between men, at least originally. (When women were property.) It’s also, at least historically, about inheritance by, and protection of, “legitimate” children. Indeed, much of argument before SCOTUS, and in the various courts and legislatures, has been about “what’s best for the children.” Justice Kennedy wondered aloud about the estimated 40,000 children of same sex couples in California, and what their needs and rights are. (Please do NOT take that as an indication of how he will rule.)
In many of the decisions about marriage, including the one in Washington that Legal Voice and our allies brought, courts have bought into the notion that marriage is primarily for procreation; that is, we must have marriage as an incentive to couples to be tied to one another and to have and raise children. I like to refer to this as the “unrestrained heterosexual sexuality” argument, or the “straights behave like bunnies” theme. And it’s hogwash.
First of all, I doubt anyone says “I’d like to have unrestrained (heterosexual) sex with you but you might get pregnant so let’s get married to ensure our children have Social Security benefits.” (At least, I hope no one does; what kind of fun is that?) More important, at least in my view, are all those couples who choose not to or cannot have children: are their relationships less worthy of state recognition? If you rest the right to marry on the needs of children, you’re ignoring – indeed, snubbing – hundreds of thousands of healthy and happy couples.
And what about the needs and rights of single parents and their children? The data are clear that parenting outside marriage is on the rise. How do we ensure that these families also have access to the legal and social protections that come with marriage? One answer – or least a theme – is proposed by Nancy Polikoff, who asks why we pin all those protections to marriage, rather than to other relationships or statuses. It’s a good question. Is there a better, more just and equal way, to recognize and venerate all families?
I’m not sure Professor Polikoff has the best approach, because it seems rather ad hoc to me, but at least she’s thinking. Maybe, just maybe, once we win marriage equality, we can turn our attention to that more expansive question. Who’s with me?
Okay, I'm not really worried about protecting Batman. Still, Alfred has rights too. Or he should.